Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2005-487

MARCH
TERM, 2006

In re L.N., Juvenile } APPEALED
FROM:

}

}

} Franklin
Family Court

}

}

} DOCKET
NO. 143-7-04 FrJv

Trial Judge:
Mark Keller

In
the above-entitled cause, the Clerk will enter:

Mother
challenges termination of her parental rights, arguing that the evidence does
not support the family court=s
conclusion that mother could not assume a parental role in a reasonable period
of time. We affirm.

Mother does
not contest the basic facts found by the family court. Mother gave birth to
L.N. on June 9, 2004. L.N. came into custody of the Department of Children and
Families (DCF) on July 22, 2004, when mother was incarcerated for thirty days.
Mother made a plan for L.N.=s
care during her incarceration, but that plan failed. Mother conceded that L.N.
was a child in need of care and supervision, and L.N. was placed in a foster
home (where he remained through the termination hearing). DCF filed a
disposition plan calling for reunification with mother. Following her release
in August 2004, mother had the opportunity for supervised visits with L.N., but
missed the majority of scheduled appointments. In addition, during this time,
mother repeatedly tested positive for drug use, gathered more criminal
convictions, and was re-incarcerated in February 2005 as a result. In April
2005, mother began participating in the ATapestry@ program, a comprehensive
effort at rehabilitation, and was expected to be released in February 2006.

The DCF=s original disposition
report of October 27, 2004, recommended reunification of L.N. with mother, but
that recommendation was changed to termination and adoption as of January 24,
2005. The family court held a contested hearing, at which it found that the
DCF petition was initiated when mother was unable to parent L.N. due to her
incarceration, and circumstances only deteriorated from that point:

Over the next six
months [mother] had an unreliable record for parent child contact, continued to
use illegal drugs, failed to pursue substance abuse counseling and failed to
comply with her terms of adult probation. In the end, [mother] was
incarcerated for violating her probation and received a minimum of thirteen
months thereby preventing her from parenting her child. [Mother=s] lengthy incarceration
is, alone, a sufficient change in circumstance [justifying] the change in the
plan.

Having found a substantial change
in material circumstances justifying the change in disposition from
reunification to termination, the court next examined whether termination was
in L.N.=s best
interests. See In re S.M., 163 Vt. 136, 138-39 (1994) (termination of
parental rights requires finding (1) that there has been a substantial change
in material circumstances and (2) that termination is in best interests of
child). The decision of whether termination is in the best interests of the
child is governed by the four statutory factors set out in 33 V.S.A. ' 5540. Mother does not
contest the family court=s
findings on the first, second and fourth statutory factors, which counseled
that termination was in L.N.=s
best interests. Her focus is on the third criterion, which requires the family
court to examine A[t]he
likelihood that the natural parent will be able to resume [her] parental duties
within a reasonable period of time.@
33 V.S.A. ' 5540(3).

In considering
this factor, the family court found that, at the time of the hearing, L.N. was
fifteen months old and had been in DCF custody since he was six weeks old.
Mother had an opportunity after her release in August 2004 to establish a
consistent parent-child relationship, but failed to do so. Rather, mother
engaged in behavior that led to her being re-incarcerated. Mother cites her
success in the highly-structured ATapestry@ program as evidence of her
ability to resume a parental role. Still, at the time of the final hearing,
her earliest release would be more than four months later, in February 2006, at
which point she would be required to demonstrate an ability to be consistent
and reliable for L.N. for at least five more months before assuming parental
duties. The family court determined that L.N., who would have been in DCF
custody for eighteen months by the time mother was released from jail, Aneeds [] permanency now.@ Accordingly, the family
court concluded that, A[c]onsidering
the age of the child when he came into custody, his age now and his age when
[mother] may [be] able to resume parental care, the court concludes that the
delay is not reasonable.@

On appeal,
mother argues that the family court should not have ordered termination in the
absence of a specific finding as to how long this particular child could wait
for mother to be able to resume a parental role before risking physical or
emotional harm. Mother, relying on In re D.A., 172 Vt. 571, 573 (2001)
(mem.), argues that time for a parent=s
potential improvement may be afforded so long as the delay does not place the
child at risk of physical or emotional harm. But this proposition does not
translate into an affirmative requirement that the family court make a specific
finding regarding precisely what amount of delay will be harmful to the child.
Indeed, while the family court is required to make findings on the four
statutory factors listed in 33 V.S.A. '
5540, findings are not otherwise required. In re J.T., 166 Vt. 173, 180
(1997). Accordingly, the family court was under no obligation to make specific
findings regarding the amount of time L.N. could wait before suffering
emotional or physical harm. Rather, the only applicable standard is that the
family court=s finding
that mother will not be able to resume a parental role in a reasonable period
of time, measured from the child=s
needs and situation, be supported by clear and convincing evidence. In re
A.F., 160 Vt. 175, 177-78 (1993).

In this case,
the family court did make specific findings as to L.N.=s situation and needs. After examining the
facts of this caseCincluding
that L.N. was placed in DCF custody at six weeks of age due to mother=s incarceration; mother=s re-incarceration since
that time; mother=s
track record of non-compliance with DOC and DCF plans; and the fact that L.N.
would be eighteen months old upon mother=s
release without yet having formed a relationship with motherCthe family court determined
that L.N. Aneeds []
permanency now.@
Mother=s more recent
success, while laudable, was achieved only under strict supervision which would
not necessarily continue upon her release. The court=s decision not to postpone permanency another
nine months, pending a still uncertain outcome, was supported by clear and
convincing evidence.

Father filed a letter purporting to join in mother=s appellate brief, but mother=s brief offered nothing in support of father=s appeal. Because mother=s appellate arguments do not address father=s interests, father may be deemed to have waived any arguments on
appeal. See King v. Gorczyk, 2003 VT 34, & 21 n.5,
175 Vt. 220 (issues not adequately briefed on appeal are waived). In any
event, considering the family court=s uncontested findings with regard to father=s parenting ability (his inability to care for L.N. during mother=s incarceration, participate in visits, or meet any of the requirements
of the DCF case plan), we conclude that the termination decision with respect
to father was supported by clear and convincing evidence.